Sealing Arrest Records

It can be a tremendous relief to find that, after having been arrested, no criminal charges were filed against you. Perhaps further investigation revealed your innocence. Or maybe the evidence the authorities did find was insufficient to indict you. Either way, you’d be remiss not to consider your good fortune.

But you may be surprised to learn that even this type of arrest — an arrest that ultimately results in no conviction — can appear in a background check[i] and can hinder your ability to get a job[ii], receive a license from a state agency[iii], acquire certain insurance[iv], get into a college or university[v], and even rent your next apartment or home[vi]. 

So, Is There a Way to Seal My Arrest Record?

Yes. Effective January 1, 2018, a new law empowers persons who were arrested for, but never convicted of, a crime to petition the Court to have the record of their arrest sealed.[vii]

Passed in California as Senate Bill 393 (“SB 393”), this new law, also known as the Consumer Arrest Record Equity (“C.A.R.E.”) Act was designed to remove barriers to employment and housing faced by those whose arrest never resulted in a conviction.[ix]

The Way Things Used to Be

There is a new, alternative way to seal your arrest record. Before January 1, 2018, the only way to seal your arrest record was by a process known as establishing your factual innocence.

Under this method, you must first ask the police department that arrested you to seal your arrest record.[x] Only after police decline your request can you bring your matter before the Court.

‘Factual innocence?’ Oh, you mean ‘actually guilty.’

Once in front of the Court, it is your burden to establish your factual innocence, that is, to prove that police had no reason to have even suspected you of having committed a crime.[xi] The standard is almost impossible to meet — even being acquitted (read: being found unanimously not guilty) by a jury is not enough to obtain a finding of factual innocence.[xii]

Technically, employers are prohibited, by law, from asking an applicant about an arrest that did not result in a conviction.[xiii] Employers must also refrain from seeking an applicant’s criminal history (for instance, via a background check from a consumer reporting agency), and from considering such information when making a hiring decision.[xiv]

Still, enforcing such restrictions can be challenging. And some employers may even be unaware that they may not inquire into an applicant’s criminal history. Moreover, these protections apply only to employers; other entities – such as insurance companies, landlords, and universities – may still look into your criminal history and consider what they find (such as an arrest that did not lead to conviction) before deciding to do business with you.

SB 393 provides a second method to seal your arrest record. Under SB 393, once an arrest that did not result in a conviction is sealed, it cannot be disclosed to anyone other than you or a “criminal justice agency” such as the district attorney’s office, the public defender’s office, or a probation or parole department.[xv] In effect, SB 393 prevents your sealed arrest from ever being disclosed to an unauthorized third party (such as a background check agency). A disclosure of your arrest to an unauthorized third party can result in a civil penalty of up to $2,500.[xvi]

Am I Eligible to Seal My Arrest Record?

You are eligible to seal your arrest if:

• The District Attorney’s Office failed to file charges against you before the statute of limitations expired;[xvii] OR
• You were arrested, charged with a crime, but, ultimately, a conviction never occurred because the case was dismissed, you were acquitted by a jury, or your conviction was reversed on appeal;[xviii]

Additionally, it must also be true that:

• You were not arrested for murder or for any other crime for which there is no statute of limitations;[xix]
• You did not try to evade authorities’ efforts to prosecute you;[xx]
• You did not engage in identity fraud to evade authorities’ efforts to prosecute you and you were not subsequently charged with identity fraud for having doing so;[xxi]

If each of these criteria are met, then you are eligible to seal your arrest record, and the Court must grant your petition to do so.[xxii] You’ll notice that the status of the crime that you were arrested for — whether a misdemeanor or a felony —does not decide whether you are eligible to seal your arrest. Rather, your ability to satisfy the above criteria is determinative.

However, if the charges you were arrested for relate to domestic violence, elder abuse, or child abuse, then the Court’s decision to grant your petition becomes discretionary, and you must submit a declaration articulating why sealing your arrest record would serve “the interests of justice.”[xxiii]

Once My Arrest Is Sealed, I Will Never Have to Disclose It, Right?

Not necessarily. There are times when even a sealed arrest record must be disclosed. If you apply for a license with a state agency, strive to become a peace officer, run for public office, or contract with the State Lottery Commission, then your sealed arrest must be disclosed.[xxiv]

Also, your sealed arrest record may be viewed by prospective employers when applying for a job with a public utility or cable company[xxv] or with a city or county governmental office[xxvi]. In either instance, once the prospective employer learns of your sealed arrest record, the entity is not allowed to discriminate against you because of it.[xxvii]

Is Sealing an Arrest Record Different from Expungement?

Yes, there is a difference. An expungement prevents a conviction from being disclosed. Moreover, an expungement cannot occur until after a person has suffered a criminal conviction.

If you were arrested and never convicted, then the proper course of action would be to seal your arrest record. In this instance, since you did not receive a conviction, you would be ineligible to seek an expungement. 

Technically, employers are prohibited, by law, from asking an applicant about an arrest that did not result in a conviction.[xiii] Employers must also refrain from seeking an applicant’s criminal history (for instance, via a background check from a consumer reporting agency), and from considering such information when making a hiring decision.[xiv]

Still, enforcing such restrictions can be challenging. And some employers may even be unaware that they may not inquire into an applicant’s criminal history. Moreover, these protections apply only to employers; other entities – such as insurance companies, landlords, and universities – may still look into your criminal history and consider what they find (such as an arrest that did not lead to conviction) before deciding to do business with you.

SB 393 provides a second method to seal your arrest record. Under SB 393, once an arrest that did not result in a conviction is sealed, it cannot be disclosed to anyone other than you or a “criminal justice agency” such as the district attorney’s office, the public defender’s office, or a probation or parole department.[xv] In effect, SB 393 prevents your sealed arrest from ever being disclosed to an unauthorized third party (such as a background check agency). A disclosure of your arrest to an unauthorized third party can result in a civil penalty of up to $2,500.[xvi]

Am I Eligible to Seal My Arrest Record?

You are eligible to seal your arrest if:

• The District Attorney’s Office failed to file charges against you before the statute of limitations expired;[xvii] OR
• You were arrested, charged with a crime, but, ultimately, a conviction never occurred because the case was dismissed, you were acquitted by a jury, or your conviction was reversed on appeal;[xviii]

Additionally, it must also be true that:

• You were not arrested for murder or for any other crime for which there is no statute of limitations;[xix]
• You did not try to evade authorities’ efforts to prosecute you;[xx]
• You did not engage in identity fraud to evade authorities’ efforts to prosecute you and you were not subsequently charged with identity fraud for having doing so;[xxi]

If each of these criteria are met, then you are eligible to seal your arrest record, and the Court must grant your petition to do so.[xxii] You’ll notice that the status of the crime that you were arrested for — whether a misdemeanor or a felony —does not decide whether you are eligible to seal your arrest. Rather, your ability to satisfy the above criteria is determinative.

However, if the charges you were arrested for relate to domestic violence, elder abuse, or child abuse, then the Court’s decision to grant your petition becomes discretionary, and you must submit a declaration articulating why sealing your arrest record would serve “the interests of justice.”[xxiii]

Once My Arrest Is Sealed, I Will Never Have to Disclose It, Right?

Not necessarily. There are times when even a sealed arrest record must be disclosed. If you apply for a license with a state agency, strive to become a peace officer, run for public office, or contract with the State Lottery Commission, then your sealed arrest must be disclosed.[xxiv]

Also, your sealed arrest record may be viewed by prospective employers when applying for a job with a public utility or cable company[xxv] or with a city or county governmental office[xxvi]. In either instance, once the prospective employer learns of your sealed arrest record, the entity is not allowed to discriminate against you because of it.[xxvii]

Is Sealing an Arrest Record Different from Expungement?

Yes, there is a difference. An expungement prevents a conviction from being disclosed. Moreover, an expungement cannot occur until after a person has suffered a criminal conviction.

If you were arrested and never convicted, then the proper course of action would be to seal your arrest record. In this instance, since you did not receive a conviction, you would be ineligible to seek an expungement.